CDT has released a report on the extent to which overly aggressive copyright claims under the Digital Millennium Copyright Act’s (DMCA) notice-and-takedown process have interfered with political campaign advertising in recent election cycles. Campaigns frequently make use of news and public-affairs footage in their ads. In a considerable number of cases, however, news broadcasters concerned about the reuse of their material in political advocacy have turned to the DMCA to force the removal of online political ads that contain such footage. Yet the incorporation of brief clips into campaign ads is highly likely to be fair use and thus non-infringing under copyright law. Thus it is inappropriate to subject the ads to DMCA takedowns.

CDT’s report, drawing on public accounts and private interviews with campaign professionals, examines the misuse of copyright enforcement tools in the political context, and the impact of such misuse on lawful online speech. Our research led to several conclusions:

First, this issue, far from being limited to one or two isolated incidents, appears to recur with considerable frequency and is well known to campaign professionals from across the political spectrum. The takedowns, too, have come from a wide variety of news organizations.

Second, what motivates these takedowns is often not copyright, but issues not within the DMCA’s purview, such as concerns over reputation and false endorsement.

Third, while disputes over the political use of broadcast footage hardly represent a new phenomenon, the online context raises significant new challenges, especially since the DMCA offers a means to precipitate immediate takedowns on a nearly automatic basis.

Fourth, the DMCA’s safeguards against abuse have not been effective in the fast-paced campaign context, where campaigns may not have the time or resources to devote to challenging takedowns.

Finally, because repeated takedown notices could lead UGC platforms to cut off a campaign’s posting privileges, abusive takedowns may have a chilling impact on the kinds of campaign videos that get produced and distributed in the first place.

In releasing the report, it is CDT’s intent that greater public exposure of and attention to this problem will discourage such abuse in the future.

Campaign advocacy advertisements and videos frequently incorporate short clips from previously aired news and public-affairs broadcasts. Such footage can play an important role in communicating and illustrating a video’s political message. While the copyright in such footage is generally held by the broadcaster that created it, use of short clips in political advertising should in many cases be permitted under copyright’s "fair use" exception. Fair use permits the use of a copyrighted work for purposes such as criticism or comment, subject to a four-factor balancing test that is applied on a case-by-case, fact-specific basis.

The case-by-case nature of fair-use analysis makes it impossible to make categorical statements about what kinds of uses are or are not fair. In line with the strong First-Amendment protection afforded political speech, however, courts have suggested that the fair use doctrine has even wider application when the use relates to issues of public concern. Political advocacy falls squarely into that category.

Moreover, an analysis of the balancing test factors suggests that all the incidents discussed in the report are straightforward cases of fair use. First, the uses are generally "transformative,” in the sense that they are intended to achieve a different purpose than the original work. The targeted videos use footage from news broadcasts, originally intended to inform, in ads or commentary intended to argue for a specific candidate or position. Second, the footage at issue often involves factual reporting, which is generally less protected by copyright than highly creative works. Third, the videos typically incorporate only short segments of much longer broadcasts. Finally, it is highly unlikely that the use of the clips has any bearing whatsoever on any market for the original news broadcasts.

There are detailed discussions of a dozen particular incidents in Part III of the report.

The DMCA procedure enables rightsholders to demand that online service providers such as web hosts and search engines remove content or links to content that the rightsholders identify as infringing. In exchange for complying with notices and quickly removing allegedly infringing material, these online service providers enjoy "safe harbor" protection from monetary damages for the infringing content.

This system strikes a reasonable balance between the need to promote Internet innovation and the need to enforce copyright. It is not invulnerable to abuse, however. Content hosts have a strong incentive to comply promptly with any facially proper takedown notice they receive, because doing otherwise could jeopardize their crucial safe harbor protection. Even when a takedown notice targets non-infringing content, therefore, it is highly likely to result in the removal of that content – and hence the undue muzzling of legitimate speech. (The website chillingeffects.org documents potentially improper takedown demands.)

The political ad takedowns that CDT’s report examines appear to be motivated by concerns that have little to do with the copyrights the DMCA was created to help enforce.. Nor does it appear that networks are singling out certain groups with DMCA takedown demands for partisan purposes, according to the campaign professionals CDT interviewed. Rather, the networks, often by their own admission, appear to be concerned about being perceived as partisan in ads or videos. They want to protect their brands as an unbiased source of news, so they misuse the notice-and-takedown process to that end – as a blunt tool to restrict the re-use of their works in political contexts.

This is not an appropriate use of the DMCA. The notice-and-takedown process was purposefully crafted to apply only to instances of copyright infringement; indeed, notices must include a statement that the sender has a good-faith belief that material is infringing. Anyone is of course free to raise non-copyright concerns with political ads in cease-and-desist letters or even lawsuits. But the DMCA process is for copyright claims only.

4) Spurious Takedowns Are Particularly Damaging in the Political Context

CDT’s report draws several conclusions about the impact of takedown demands that improperly target online political ads.

First, the report demonstrates that abuse of the DMCA’s notice-and-takedown process against political speech is not a problem isolated to a few examples, but one that recurs with considerable frequency. While CDT’s inquiry was sparked by high-profile incidents involving the 2008 McCain campaign, there are multiple other publicly documented examples, and many campaign personnel we spoke with were aware of the issue and viewed it as a real problem, and one likely to grow.

Second, our interviews also revealed that there is nothing novel about news networks objecting to the use of their footage in political ads – but the new twist in the online context is that the DMCA takedown process offers a unique ability to secure immediate removal on demand and with little, if any, resistance. The DMCA, unlike traditional cease-and-desist letters, usually results in immediate removal, no questions asked. When a campaign receives a cease-and-desist letter, it can consider its legal position and decide wither to ignore or contest the claim. By contrast, content hosts have little incentive to consider the merits of any takedown request; their principal interest is in complying with the notice to keep their safe harbor.

Third, although the DMCA features several safeguards to protect against erroneous or abusive takedown notices, these have proven ineffective in the campaign context. There is a counter-notification process which enables a poster to challenge an inappropriate takedown demand, but political campaigns are often unwilling or unable to redirect limited resources toward pushing back against takedown demands. In any event, the reposting process takes at least 10-business days. This can be a lifetime in a campaign. The damage to message timing is often done by the time a video could be put back online. In addition, while the DMCA provides penalties for knowingly misrepresenting that material is infringing, those penalties appear to have had limited impact as a deterrent. Given the subjectivity of fair use analysis, there would likely be a high bar for demonstrating that a complaining party lacked a good faith belief that a particular ad was infringing.

Finally, inappropriate takedown notices can chill campaign speech in ways that go beyond the removal of a particular video. The DMCA contains a prerequisite to the safe harbor that requires content hosts to have “adopted and reasonably implemented . . . a policy that provides for the termination in appropriate circumstances of . . . repeat infringers.” Many sites meet this requirement by cancelling user accounts after a specified number of DMCA takedown notices are received regarding that account. Such policies are of particular concern for campaigns because campaigns are ‘serial fair users’ whose videos regularly include short footage from news broadcasts. Several of the campaign staff we interviewed for this report expressed this as the nightmare scenario: a campaign gets three spurious takedowns for videos on its YouTube account, causing the entire account to be shut down. This could be devastating to any campaign that had invested considerable resources in developing an online presence.

This fear, several of the campaign professionals told us, can have a chilling effect on the creation of ads that incorporate broadcast footage. Particularly if a campaign has already been targeted by a takedown notice – however unwarranted – it may shy away from making additional ads that could elicit additional notices. In short, takedown demands that ignore fair use can have an impact not just on the specific ads the notices target, but on the content of a campaign’s future ads as well.

There is no question about the importance of political speech; it is central to the meaning and purpose of the First Amendment and has historically received the highest level of protection. There is also no question that online platforms are of increasing importance as forums for political speech. As campaigns rely more and more on digital outlets to reach voters, all signs indicate that the problems and impact associated with improper takedown demands have the potential to increase significantly.

Containing the problem will likely require broadcasters and news organizations – either on their own, or due to public exposure and pressure – to refrain from abusing the DMCA process to address non-copyright concerns and chill lawful fair use in political ads. This does not mean abandoning all means to complain about a campaign’s activity: an organization could express objections directly to the campaigns in question, issuing cease-and-desist letters and brandishing the threat of possible legal action where appropriate. It is not hard to see why it also would be tempting for such an organization to serve takedown notices on third party intermediaries who have little incentive to contest them – but doing so in inappropriate cases constitutes an abuse of the DMCA process and should be resisted.